Case o' The Week: Panel Finds Assault Issue Aggravating, Esparza-Herrera

In Bananas, Woody Allen cross-examines himself during a sedition trial -- and breaks himself down during withering questioning. The scene comes to mind when reading Esparza-Herrera, where a three-judge panel "concurs" (really, dissents) from its own per curiam decision. United States v. Esparza-Herrera, __ F.3d __, No. 07-30490, 2009 WL 455512 (9th Cir. Feb. 25, 2009), decision available here.

Players: Nice win from a skeptical panel by Montana AFPD Thomas Monaghan.

Facts: Esparza-Herrera, a § 1326 defendant, got hit with the sixteen offense-level specific offense adjustment for an Arizona assault prior. Id. at *1. The PSR described this assault as the defendant breaking into his girlfriend’s house and beating her for four hours. Police said she had blood on her hands and face, both eyes were swollen shut, and she was covered in bite marks. Id. at *1 & n.2. [Ed. Note: Recall that PSRs cannot be used as evidence for the modified categorical analysis].

Because this Arizona assault statute can be triggered by “ordinary recklessness,” the district court found that the assault conviction did not meet the generic, categorical definition for the “assault” crime of violence. Id. at *1. (There were insufficient documents to support a “crime of violence” finding under the modified categorical analysis.) Id.

Issue(s): “The United States Government appeals the district court’s ruling that Gerado Esparza-Herrera’s prior conviction for aggravated assault under Arizona Revised Statutes . . . was not a conviction for a ‘crime of violence’ under section 2L1.2 of the United States Sentencing Guidelines.” Id. at *1.

Held: “We [in the Ninth Circuit] do not use the common sense approach. Instead, we must apply the categorical approach even when the object offense is enumerated as a per se crime of violence under the guidelines.” Id. at *3 (emphasis added). “We hold under the categorical approach, assessing the law of other jurisdictions and scholarly comment, ordinary recklessness is a broader mens rea requirement for aggravated assault than is ‘recklessness under circumstances manifesting extreme indifference to human life.’ Accordingly, we conclude that [this Arizona statute] is broader than the Model Penal Code’s definition of aggravated assault because the Arizona statute alone encompasses acts done with ordinary recklessness.” Id. “We conclude that the district court correctly denied the government’s request for a 16-level sentencing enhancement . . . .” Id. at *5.

Of Note: In an unusual twist, Judge Gould “concurs” (though effectively, dissents) from his own per curiam decision – as do Judges Tallman and Callahan. Their complaint is that the Fifth Circuit takes what this panel describes as a “common sense approach.” The Fifth would call this assault a “crime of violence” despite the niggling details of the statute of conviction. Id. at *5.

By contrast, Judge Gould complains, “in this esoteric sphere of [the Ninth’s] legal analysis our circuit precedent in substance says that common sense is out and instead we must canvas and assess what the majority of jurisdictions have concluded.” Id.

There’s much to criticize in the concurrence’s critique, but the easiest rejoinder is that we’ve already won this issue: this remains the Ninth, not the Fifth, Circuit. Lest we get too cocky, though, beware that this trio seems to be gunning for en banc or Supreme Court review of the Ninth’s rule.

As an aside, it is fascinating that the government (and many district courts) remain so slavishly devoted to “advisory” guidelines that Section 3553(a) sentences – which would presumably rectify this breach of “common sense” – are still verboten. The USSG-Emperor’s clothes are still looking spiffy in federal district courts (thankfully, at times).

How to Use: Esparza-Herrera is a grudging lead decision for cases where an assault prior triggers a “crime of violence” specific offense adjustment – there’s many new little holdings on “recklessness” as a foundation for a “crime of violence” predicate. Worth a cross-check in federal cases involving assault priors.

For Further Reading: Must a defense attorney advise an alien client that a conviction will be an agg felony, triggering mandatory deportation? The Supremes will answer that question for us next term: cert. was granted in Padilla v. Kentucky on February 23, 2009. See summary here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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